Historically, disputes between employers and employees were resolved through large-scale industrial action, leading to a need for legal protection against unfair dismissal.

However, unfair dismissal law is often misapplied and one major area of contention is the so-called ‘other substantial reason’ clause – an allowance given to employers so they may use any excuse possible to unfairly terminate employees.

Defining Unfair Dismissal

Understanding unfair dismissal law is essential to businesses, in order to uphold fair termination practices and prevent costly litigation that could prove financially and reputationally costly for the organization.

Unfair dismissal refers to instances when employers take decisions that do not conform with ERA 1996 (or SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures) when making dismissals decisions that do not adhere to natural justice or equity requirements, taking into account employee position before making their dismissal decisions.

Employers must also conduct reasonable inquiries into any suspected acts of misconduct, and consider all reasonable responses available – for instance firing an employee for refusing to wear a face mask during a Covid lockdown may be seen as unfair and should therefore not occur.

Constructive Dismissal

Employer violations of trust and confidence inherent in employment contracts may give rise to claims for constructive dismissal. A breach may involve any actions which make an employee’s work environment intolerable, such as cutting their salary or hours, demoting them, altering their job duties without providing appropriate equipment, harassment or discrimination against the employee etc.

Employees typically must take the initiative in filing for constructive dismissal and should notify management via their company’s standard grievance procedure of any incidents or conversations that might form the basis for a potential constructive dismissal claim. It’s essential that any possible issues be documented to protect future claims of constructive dismissal.

Although this may be challenging, the extra effort may help stop any additional damage and ensure you receive all the compensation to which you are entitled.

Harsh Dismissal

If a dismissal is determined to be unfair by the Fair Work Commission, reinstatement (if that’s what you desire) as well as compensation payments that include both basic awards similar to redundancy payments and compensatory awards designed to be “just and reasonable”.

Employers should keep in mind that it is their duty to show that their dismissal was harsh, unjust or unreasonable. Although winning an unfair dismissal claim can be challenging, statistics show that over one-quarter of these claims are resolved via conciliation processes.

Courts or tribunals do not always have the time or ability to conduct a full examination of all aspects of an employee’s personal and financial life before making their determination on whether an action was harsh; such an undertaking involves gathering various pieces of information which might only become available after it had taken place – yet doing so remains fundamental to legal proceedings.

Procedural Fairness

No matter the philosophy guiding procedural fairness rules, it is crucial to remember there can be competing principles which could create confusion or lead to conflict among different rules.

As a rule, any denial of access to an impartial tribunal or decision maker constitutes a breach of procedural fairness, including depriving an individual the opportunity for their case to be heard by one. This also includes being denied extra time to submit documents, reschedule hearings or submit submissions on critical issues.

Burke and Leben presented research showing that people are more likely to accept decisions made through fair processes if there has been due process in making them, creating a stronger commitment over time to obey that decision.

Judges and their staff can take many measures to promote procedural fairness. Yale Law Professor Tom Tyler has collaborated with Judges Burke and Leben of the National Center for State Courts on creating a bench card to highlight some practical solutions.